McCallum #159269 v. Michigan Department of Corrections et al

Filing 4

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK ALLAN McCALLUM,
Plaintiff,
v.

Case No. 1:15-cv-700
Honorable Gordon J. Quist

MICHIGAN DEPARTMENT OF
CORRECTIONS et al.,
Defendants.
______________________________/

OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s
pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s claims against
Defendants Michigan Department of Corrections and Mason County Jail on grounds of immunity
and failure to state a claim. The Court will serve the complaint against Defendant Prison Health
Services.

Discussion
I.

Factual allegations

Plaintiff Mark Allan McCallum presently is incarcerated with the Michigan
Department of Corrections (MDOC) at the Richard A. Handlon Correctional Facility (MTU). He
sues Defendants MDOC, Prison Health Services (PHS), and the Mason County Jail (MCJ).
Plaintiff alleges that he was scheduled to have hernia surgery in October 2011, when
he was arrested and incarcerated at the MCJ to await trial. MCJ officials refused to allow Plaintiff
his surgery, but they gave him a hernia belt to wear, which reduced his pain. After Petitioner was
sentenced, he was transferred to the MDOC. On May 6, 2013, he was seen by Dr. Akash Kumar
at the Duane Waters Hospital. Dr. Kumar took away Plaintiff’s hernia belt. Plaintiff allegedly
suffered extreme pain for over a year, until he received another hernia belt on July 31, 2014.
Plaintiff contends that, even with the belt, he remained in extreme pain and had difficulty eating,
causing him to lose 40 pounds and to be barely able to walk. Prison officials allegedly believed that
Plaintiff’s problems were psychological, diagnosing him with phobias, as well as anxiety,
delusional, antisocial, and personality disorders. Nurse Joshua Langdon took photographs of
Plaintiff’s massive hernia, which measured eight inches by six inches. Dr. Czop at MTU recognized
the severity of Plaintiff’s health situation, and he attempted to obtain surgery for Plaintiff. However,
PHS officials claimed that Plaintiff was on a hunger strike, which had caused his loss of weight.
Dr. Czop allegedly resigned his position as a prison doctor because PHS refused Plaintiff’s surgery.
After more than three years of suffering, Plaintiff eventually received surgery, ostensibly because
he threatened to bring a lawsuit.
Plaintiff contends that numerous prison guards, health officials, and inmates
witnessed the pain he suffered on a daily basis. He contends that Defendants were both negligent
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and deliberately indifferent to his pain, suffering, and loss of weight. He seeks $250,000 in damages
from each of the Defendants.
II.

Immunity

Plaintiff may not maintain a § 1983 action against the MDOC. Regardless of the
form of relief requested, the states and their departments are immune under the Eleventh
Amendment from suit in the federal courts, unless the state has waived immunity or Congress has
expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara
v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh
Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of
Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874,
877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth Circuit has specifically held that
the MDOC is absolutely immune from suit under the Eleventh Amendment. See, e.g., McCoy v.
Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010); Turnboe v. Stegall, No. 00-1182, 2000
WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of Michigan (acting through the
MDOC) is not a “person” who may be sued under § 1983 for money damages. See Lapides v. Bd.
of Regents, 535 U.S. 613 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)).
Therefore, the Court dismisses the MDOC.
III.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
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than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED . R. CIV . P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff sues the Mason County Jail. The jail is a building, not an entity capable of
being sued in its own right. However, construing Plaintiff’s pro se complaint with all required
liberality, Haines, 404 U.S. at 520, the Court assumes that Plaintiff intended to sue Mason County.
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Mason County may not be held vicariously liable for the actions of its employees under § 1983. See
Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); City of Canton v. Harris, 489 U.S. 378, 392
(1989); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, a county is liable only
when its official policy or custom causes the injury. Id.
Plaintiff’s allegations against the county essentially rest on a theory of vicarious
liability and therefore do not state a claim. Id. Moreover, as the Supreme Court has instructed, to
demonstrate that a municipality had an unlawful custom, a plaintiff must show that the municipality
was deliberately indifferent to “practices so persistent and widespread as to practically have the
force of law.” Connick, 131 S. Ct. at 1359. Plaintiff cites no prior incidents demonstrating a
widespread pattern. Conclusory allegations of unconstitutional conduct without specific factual
allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555
(2007). Plaintiff therefore fails to state a claim against Mason County. Accordingly, the Court will
dismiss the Mason County Jail.
On initial review, the Court concludes that Plaintiff’s allegations are sufficient to
warrant service of his Eighth Amendment claim on PHS.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Michigan Department of Corrections and Mason County Jail will be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c), on grounds
of immunity and failure to state a claim. The Court will serve the complaint against Defendant
Prison Health Services.
An Order consistent with this Opinion will be entered.

Dated: July 15, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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